“I concluded that this memo is in many ways inconsistent with EO,” Friel wrote to colleagues in the civil rights division. “I intend to consult the Department’s leadership on the issue of revised guidelines that adapt to the policy established in the EO. As part of this process, we will seek expert opinion on the subject of the Division. ”
The unexpected decision of the Supreme Court, 6-3, last June, in Bostock v. Clayton County concluded that a half-century ban on sex discrimination in employment applies equally to discrimination against gay and lesbian workers, as well as those who are transsexual.
While the decision – written by judge Neil Gorsuch, appointed by Trump – does not explicitly extend the same reasoning to discrimination in areas such as education or housing, many lawyers said the logic of the decision would inevitably apply to other laws that prohibit sex discrimination.
However, the analysis that the Trump administration publicly released the day before Trump stepped down advised against such an interpretation and often seemed more enamored of Judge Samuel Alito’s dissent in Bostock than the majority majority’s opinion.
“We must hesitate to apply Bostock’s reasoning to different texts, adopted at different times, in different contexts,” wrote Deputy Attorney General John Daukas in the memo, dated Sunday.
By late Friday, Daukas’ extensive memo had disappeared from the Justice Department website.